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Defense of Marriage Act: Obama Administration Will Not Defend Constitutionality

March 4, 2011

The Obama administration’s Feb. 23 announcement that it will not defend the constitutionality of the federal Defense of Marriage Act in upcoming cases brought by same-sex married couples drew criticism the same day from the U.S. Conference of Catholic Bishops’ general counsel, Anthony Picarello Jr.

“The principal basis for today’s decision is that the president considers the law a form of impermissible sexual orientation discrimination,” Picarello explained. However, he said, “support for actual marriage is not bigotry, but instead an eminently reasonable, common judgment affirming the foundational institution of civil society.”

In the days that followed, reaction to the administration’s decision focused more and more on whether the Defense of Marriage Act discriminates against homosexual persons or denies them a civil right.

In a statement March 3, the president of the U.S. Conference of Catholic Bishops, Archbishop Timothy Dolan of New York, emphatically rejected the notion that opposition to same-sex marriage constitutes a form of unjust discrimination based on a person’s sexual orientation.

This law “does not single out people based on sexual ‘orientation’ or inclination. Every person deserves to be treated with justice, compassion and respect, a proposition of natural law and American law that we as Catholics vigorously promote,” Archbishop Dolan said.

In fact, he continued, “unjust discrimination against any person is always wrong. But [this law] is not ‘unjust discrimination’; rather, it merely affirms and protects the time-tested and unalterable meaning of marriage. The suggestion that this definition amounts to ‘discrimination’ is grossly false and represents an affront to millions of citizens.”

President Obama’s decision on the 15-year-old Defense of Marriage Act was directed particularly to its third part, which explains how the terms “marriage” and “spouse” are to be interpreted on the federal level. The law defines “marriage” as a legal union of a man and a woman as husband and wife, and it says the term “spouse” refers to someone in such a union.

Thus, the federal law prohibits the government from recognizing same-sex marriages and denies federal marriage benefits to same-sex couples, even if their marriages are recognized in their home states. Current challenges to the law have been brought by same-sex couples who hold they were denied benefits available to married persons.

Attorney General Eric Holder announced the Obama administration’s decision on the Defense of Marriage Act. He said that while the administration has defended the law in some federal courts, it will not continue to do so in cases pending in the 2nd U.S. Circuit Court of Appeals. Unlike previous cases, Holder said the 2nd Circuit “has no established or binding standard for how laws concerning sexual orientation should be treated.”

Holder said President Obama “has concluded that the statute is unconstitutional.” Thus, the “administration will no longer assert” the constitutionality of Section 3 of the law in court. But Holder said the president had informed him that the administration “will continue to enforce the law.”

While the Justice Department “will not defend the constitutionality” of the law’s third part “in the two cases filed in the Second Circuit,” Holder said that “we will, however, remain parties to the cases and continue to represent the interests of the United States throughout the litigation.”

Holder said he “informed members of Congress of this decision, so members who wish to defend the statute may pursue that option.”

Members of the U.S. House of Representatives were asked to pursue precisely such an option by leaders of Catholic, Protestant and Sikh communities of faith who joined in sending a letter March 3 to Speaker of the House John Boehner (R-Ohio). The interfaith leaders asked that the U.S. House of Representatives “take leadership in defending the Defense of Marriage Act in the federal courts.”

The letter to Boehner asked “that the House intervene as a party in all cases” in which the federal law is challenged.” Signers of the letter included Archbishop Wilton Gregory of Atlanta, chairman of the U.S. Catholic bishops’ Committee on Ecumenical and Interreligious Affairs, and Bishop Salvatore Cordileone of Oakland, Calif., chairman of the bishops’ Ad Hoc Committee on Defense of Marriage. Together with the other signers, they represented “tens of millions of adherents,” the U.S. Conference of Catholic Bishops said.

Archbishop Dolan’s March 3 statement stressed that “marriage, the union of one man and one woman as husband and wife, is a singular and irreplaceable institution.” He asked, “Have we wandered away so far in our society as to forget why men and women matter, and eroded the most central institution for our children and for our future?”

The Obama decision on the Defense of Marriage Act “does not stand the test of common sense,” the archbishop commented. Saying that “a husband and wife have a unique and singular relationship that two persons of the same sex — or any unmarried persons — simply do not and cannot have” hardly constitutes discrimination, he said.

Believing “that the union of husband and wife has a distinctive and exclusive significance worthy of promotion and protection by the state” is not discrimination, Archbishop Dolan said. Neither is it a form of discrimination “to say that having both a mother and a father matters to and benefits a child.”

The archbishop called the administration’s position on the Defense of Marriage Act “not only a grave threat to marriage, but to religious liberty and the integrity of our democracy.” He said:

“Our nation and government have the duty to recognize and protect marriage, not tamper with and redefine it, nor to caricature the deeply held beliefs of so many citizens as “discrimination.”

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Marriage in the News

David Gibson served for 37 years on the editorial staff at Catholic News Service, where he was the founding and long-time editor of Origins, CNS Documentary Service. David received a bachelor’s degree from St. John’s University in Minnesota and an M.A. in religious education from The Catholic University of America. Married for 38 years, he and his wife have three adult daughters and six grandchildren.

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